Comcare and refusal to adhere to S59

You can think of S59 request as an FOI request, without the formalities and without any ability for Comcare to redact or withhold certain information.

Comcare are redacting and withholding information, nonetheless. I have received emails under S59 with email addresses redacted. From my research and Comcare’s inability to explain to me what gives them the ability to redact documents, I’d suggest this is not lawful.

Here is the part of S59 which requires Comcare to provide documents to a Comcare claimant:

(1) A relevant authority shall:

(a) on request by a claimant — give to the claimant any document held by the authority that relates to the claimant’s claim;

As we can see, S59 is clear that “A relevant authority” which in this case is Comcare, shall (must) provide any document held by Comcare that is relevant to the claim. This is any document, not a subset of particular documents.

Comcare is not following the law. If you look at Comcare’s website, we can see that Comcare have taken it upon themselves to decide that instead of producing any relevant document, they will only produce the following documents that they have decided they want to produce:

What Comcare are doing is they maintain a claim file, but then any emails, comments or documents that they don’t want the claimant to be provided under S59, they conveniently leave out of the claim file. This is of course entirely contrary to the law, but as we know, Comcare makes its own interesting interpretations of the law to suit itself.

Comcare claims that it is in line with AAT and FCA cases that state they only have to provide claim file documents, but I have asked Comcare multiple times which cases they are relying on to state that they only have to produce this subset of documents, and not any document as the legislation clearly states.

Comcare has no answer, Comcare are unable to inform me why they are only providing certain documents under S59. They do not know which AAT and FCA cases they are claiming to rely on, and I’d suggest they probably do not exist.

On the 3rd November 2023 I asked Comcare exactly these questions, this is an extract from an email I sent Comcare:

I clearly asked Comcare for any of the case law precedent (AAT and/or FCA cases) they are reliant upon for releasing only certain documents under S59. Comcare never responded to me.

I have no doubt documents that are Legal Professional Privilege (LPP) would not be disclosable, this is a fact of law, and further affirmed in this FCA case.

Comcare apparently started deploying deceptive measures of segregating documents out of a claim file, so they do not have to supply it under S59. A HUMINT source for this article, has provided me with the following information which I have summarised:

Many years ago, possibly around 2017, Comcare started splitting claimants case files into individual subfiles.

There is the claim file which gets released with an S59 request, and there is the AAT file which they put everything they claim is subject to LPP.

There used to be a further subfile called the comments file, this contained all the comments and emails Comcare staff made with regards to our claims. We used to be able to obtain the contents of the comments file under FOI, but Comcare realised we were accessing this information, and to block this from occurring, Comcare started CC’ing in a lawyer with all their internal communications and have instead been putting all internal communications in the AAT file, which of course, they cite LPP over that entire file.

In my former employment, I was involved in the execution of Section 3E Crimes Act warrants, and many times the issue of LPP arose. It probably wouldn’t surprise you to learn that criminals try and share a lot of information about their illegal behaviour through lawyers, the theory goes they can then claim LPP on the emails when we are executing a search warrant. My HUMINT source has alleged that Comcare appears to be operating in the same manner as criminals.

Just because you CC in a lawyer, does not characterise the discussion to be one of a genuine exchange of legal advice. You can’t just CC in a lawyer and claim LPP. Criminals try to do this, allegedly Comcare is doing this, but under ordinary circumstances this tactic falls flat. The issue here seems to be that because Comcare is the Australian Government, Comcare can allegedly operate in the same manner as criminals, and there is nobody holding Comcare accountable for doing so.

When criminals try this stunt, what usually happens is the emails get sent to an independent/impartial third-party for an assessment to see if they are genuinely LPP. We would utilise the services of the Attorney-General’s Department for this purpose.

Because Comcare is the Government and given there is no right of review under S59, Comcare can just say something is LPP even when it clearly isn’t and fail to hand it over. And when you combine this lack of oversight with low-quality humans who engage in lying and other deceptive conduct which I have witnessed for myself, you end up with this cesspit known as Comcare, just inventing its own version of the law as it sees fit. And here we are today. S59 is clearly saying that Comcare needs to hand over any document that is relevant, and Comcare deciding that it only wants to hand out certain documents that don’t show the incriminating behaviour which I often allege is occurring at Comcare. Very convenient for them hey…

Comcare needs to stop splitting documents into different piles, a pile of documents they want to release (claim file) and piles of documents they don’t want to release into other files. Fair enough to withhold genuine documents that would fall under the purview of LPP, but given Comcare are claiming on my own claim file, over a period just shy of 3 months, there are over 4,000 pages of LPP documents… I find this hard to believe based on my own experience dealing with LPP.

The law is clear in that it does not allow for this to occur, it directly cites any document relevant to a claim, and Comcare has been unable to provide any law that allows it to withhold all but certain types of documents.

If Comcare truly are CC’ing in a lawyer so they can cite LPP as a means not to release certain documents, this needs to stop. Somebody needs to investigate these allegations, because this is the same behaviour which I would observe criminals utilising when I would assist in the execution of search warrants, and to me, that would mean that Comcare would be operating like criminals. If it’s true, it has to be said, the only difference between a criminal and the Australian Government, is that a criminal gets prosecuted.

It should also be noted that there is no statutory time limit for Comcare to respond to an S59 request. I have observed in many instances Comcare just completely ignoring and failing to respond to my S59 requests. As there is no time limit for them to produce the documents, Comcare can, and I have witnessed it myself, sit on requests for time eternal and never produce any of the requested documents.